Decision #158/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 25, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 25, 2001 and November 29, 2001.

Issue

Whether or not the worker had recovered from the effects of the June 4, 2000 compensable injury by December 18, 2000.

Decision

That the worker had recovered from the effects of the June 4, 2000 compensable injury by December 18, 2000.

Background

On June 4, 2000, the claimant experienced spasms in the middle of his back while washing supplies at a sink during the course of his employment as a central supply aide III. On his application form for benefits, the claimant stated that this had been going on for about 3 weeks but today he could not continue working. He has had previous difficulties with his lower back but never the middle of his back like he had now.

Reports on file from the attending healthcare practitioners noted the following information:

  • Hospital report of June 5, 2000 - claimant presented with complaints of severe back spasm in thoracic region. He stated that the pain was so bad he couldn't sleep last night.
  • Doctor's First Report of June 9, 2000 - progressive back pain because of work duties. Acute onset of upper thoracic pain lifting equipment. Diagnosis was lumbar back strain. The claimant was totally disabled effective June 5. Estimated return to work was June 19, 2000. Restrictions were outlined to avoid bending and lifting.
  • Progress report from a second physician dated June 12, 2000 - diagnosis was back spasms to the thoracic region. Arrangements were made for physiotherapy treatments.
  • Progress report of June 19, 2000 - the claimant was diagnosed with a muscular ligamentous strain of the thoracic region.
  • July 13, 2000 report - the claimant was reported to be 6'7" and weighed 300 lbs. The physician stated that decreased physical conditioning and increased weight were impacting on the claimant's recovery. Recommendations were made for a graduated return to work program (the claimant commenced this program in early August 2000).
  • June 24, 2000 - a WCB medical advisor commented that the attending physician acknowledged pre-existing obesity and decreased conditioning. The medical advisor felt that the claimant's age along with the cumulative ravages of age and time were contributing to the majority of his present problems and delay in recovery. He suspected that the claimant had a back at risk.
  • Chiropractor's First Report of August 14, 2000 - the diagnosis rendered was a lower thoracic strain. Recommendations were made for chiropractic adjustments, soft tissue therapy and for the claimant to continue with the graduated return to work program.
  • X-rays of the thoracic spine dated September 8, 2000 - the report indicated that minor degenerative changes were noted. There was no other significant abnormality except a large hiatus hernia was suspected.
  • X-rays of the lumbosacral spine dated September 8, 2000 - the report indicated degenerative narrowing of the L4-5 and L5-S1 disc spaces were noted. There was minor scoliosis convex to the left. No other abnormality was identified.
  • Progress report of September 8, 2000 - "poor response to treatment." The physician noted ongoing lumbar back pain. Claimant using 6-8 Percocet/day, worse at 2nd half of shift. Under objective findings, "Very limited range of movement in all directions despite 1 week off work."
  • WCB medical advisor examination of October 13, 2000 - it was believed that the claimant, as a result of many years of hard labour combined with the natural ravages of age and time plus obesity, sustained some pre-existing degenerative osteoarthritis of the upper spine. The medical advisor indicated that over the years and especially the month prior to his report, the claimant sustained ongoing aggravation of pain in the upper spine, possibly related to mild facet arthropathy and also due to some secondary muscular spasm. Barring any further pathology, it was believed that the claimant would likely have periods of discomfort from time to time, as the years go on. The medical advisor was of the view that the claimant was capable of a graduated return to work program. (The claimant commenced a graduated return to work program on November 6, 2000).
  • Chiropractic Progress Report of November 10, 2000 - subjective complaints were stiffness in mid back and paraspinal areas especially after work. The chiropractor noted that the claimant was still on the graduated return to work program and should be monitored until he reached full work ability. On December 5, 2000, a WCB chiropractic advisor authorized 6 further weeks of chiropractic treatment, for a total of 20 weeks.
  • Progress report of December 20, 2000 - subjective complaints were "relapse of R lower lumbar back associated with heavy lifting and symptoms of right sciatica." The claimant exhibited very reduced ability to flex and extend - right sciatica aggravated by SLR (straight leg raising).

On December 28, 2000, the claimant contacted the WCB to advise that he had been off work since December 20, 2000. The claimant indicated that he was still going to the chiropractor once per week; was taking T3's and was having sleep disturbances. He stated that the inflammation in his back was working around to the rib cage.

  • Chiropractic report of December 28, 2000 - claimant noted to be getting sharp pains in mid thoracic spine - aggravated by bending and lifting.
  • In a memo dated January 4, 2001, a WCB medical advisor was asked to review the case and to comment on whether there was a cause and effect relationship between the June 2000 compensable injury and the claimant's current complaints. The medical advisor responded that there was no current evidence to suggest that the claimant's current symptoms were related to his compensable injury. He agreed with the medical advisor who had previously examined the claimant, that the claimant's obesity, age and spinal arthritis would, on a balance of probabilities, be the culprit.

In a decision dated January 11, 2001, the claimant was advised by the case manager of Rehabilitation and Compensation Services that it was felt he had recovered from the effects of the June 4, 2000 injury and that there was no relationship between his current time loss from work. Wage loss benefits would therefore be paid up to December 17, 2000 inclusive. On February 6, 2001, a union representative disagreed with the decision that the claimant was recovered from the effects of his compensable injury and the case was referred to Review Office.

On March 2, 2001 Review Office determined that no further wage loss benefits were payable beyond December 17, 2000. Review Office noted that there were many factors involved which may very likely be playing a role in the claimant's propensity for back pain. The claimant admitted to lumbar back complaints for a lengthy period of time pre-existing this particular claim and any attempts at rehabilitation of his back were often retarded by the many non-compensable factors. Review Office was of the opinion that the file evidence did not lead one to conclude that the claimant's December 18, 2000 symptoms were related to the June 4, 2000 thoracic strain. On March 20, 2001, the union representative appealed Review Office's decision and an oral hearing was arranged.

Following the hearing, the Panel met to discuss the case and requested that an independent orthopaedic specialist assess the claimant. The examination later took place on September 28, 2001 and the report of October 29, 2001 was forwarded to the interested parties for comment. Subsequent to this examination and prior to the Panel's decision, the Commission was informed that the claimant had passed away. On November 29, 2001 the Panel met again to discuss the case and took into consideration submissions from the claimant's union representative dated November 20, 2001 and from the employer's advocate dated November 23, 2001.

Reasons

This case involves a worker who injured his mid-back in a workplace accident in June 2000. He filed a claim for workers compensation, which was accepted and benefits paid accordingly.

In January 2001, the board determined that his ongoing problems with his back were not causally related to his compensable injury and benefits were cut off, as of December 18, 2000. He requested a reconsideration of this decision by the Review Office, which upheld the decision. He appealed that decision to this Commission.

The issue before us was whether or not the claimant had recovered from the effects of his compensable injury of June 4, 2000 by December 18, 2000.

For the claimant's appeal to succeed, the Panel would have to determine that his problems with his back, after December 18, 2000, were related to his compensable injury. We were unable to make that determination.

In coming to our decision, the panelists made a careful review of the claimant's file, as well as conducting an oral hearing, at which we heard testimony from the claimant and argument from his advocate.

The claimant's advocate (his union representative) asked us not to accept the reasoning of both the primary adjudicator and the Review Office, which was that the worker's inability to return to work was no longer due to his compensable injury, but owed more to his excessive weight and his age-related degenerative changes in his back. She noted that his weight and age had not previously hindered his ability to perform his job.

She further noted that this worker had had a number of previous work-related injuries to his lower back, which had been accepted as compensable by the board. She argued that the board had to accept some of the blame for his current symptoms, as the board had repeatedly sent him back into the same workplace without any restrictions or preventive vocational rehabilitation.

We found that the medical evidence on file was insufficient to allow us to resolve the issue. So, we referred the claimant to an orthopaedic specialist for an independent medical examination.

After examining the claimant, this specialist reported the following conclusions:

    "There has been no information . that suggests the symptomatology that occurred June 4, 2000 was anything more than a musculoligamentous injury. There is nothing to suggest deep structural change or neurological compromise.. probably a combination of factors . There is morbid obesity, early degenerartive changes in the thoracic spine, significant respiratory compromise and some residual mechanical lumbar back problems.. Musculoligamentous injury should not have continued to disable [the claimant] to the degree he describes so long after the injury. . I believe [theclaimant] is unemployable mainly because of the other factors listed, especially his obesity and respiratory compromise."

We found this medical evidence to be very persuasive and have concluded that - on a balance of probabilities - the claimant had recovered from the effects of his workplace injury as of December 18, 2000. Thus, his compensable injury was no longer the cause of his loss of earning capacity.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of December, 2001

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